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The inherent supervisory jurisdiction of the Supreme Courts summarised by the NSW Court of Appeal

My case note of Hartnett v Bell [2023] NSWCA 244 is here. The purpose of this sister post is to reproduce the summary of the law relating to the superior courts’ inherent jurisdiction to supervise the charging of and discipline its officers which Bell CJ set out at [123]:

‘Several statements of authority may be noted at the outset of the consideration in relation to the Court’s inherent and supervisory jurisdiction:

1. The Court’s inherent jurisdiction “can be exercised in any circumstances where the requirements of justice demand it and thus cannot be restricted to closed and defined categories of cases”: McGuirk v University of New South Wales [2010] NSWCA 104 at [178] (McGuirk); Reid v Howard (1995) 184 CLR 1 at 16; [1995] HCA 40 (Reid); Tringali v Stewardson Stubbs & Collett Ltd [1966] 1 NSWR 354; (1966) 66 SR (NSW) 335 at 344; Continue reading “The inherent supervisory jurisdiction of the Supreme Courts summarised by the NSW Court of Appeal”

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How to interview a witness who might be a defendant

In Victoria v Villan [2022] VSCA 106, the Court of Appeal gave guidance to practitioners in relation to the treatment of non-party witnesses in civil cases where the criminal prosecution of the witness is on the cards, after self-incrimination issues derailed a jury trial in a historical sexual abuse case, occasioning its stay.

Given that the statutory provision in question — s 128 of the Evidence Act 2008 — extends beyond the privilege against self-incrimination to the privilege against penalties, the guidance must also apply where a proposed witness in civil proceedings who is a professional might expose themselves to a penalty in the form of disciplinary sanction by giving evidence in civil proceedings. An employee solicitor or the director of a defendant law practice in a negligence suit, should be advised by the defendant’s (insurer’s) lawyers of the possibility of disciplinary sanction, and of the possibility that evidence called by the defendant might affect any subsequent disciplinary investigation and prosecution, since the Victorian Legal Services Commissioner and VCAT alike have power to issue fines for proven misconduct, an archetypal penalty.

Indeed, in Oldham v Law Institute of Victoria [2012] VCAT 571 (a disciplinary prosecution despite the counter-intuitive title of the proceeding), Judge Bowman recorded that Terry Forrest J had in earlier related civil proceedings ‘completely understandably and very fairly’ refused to allow the cross-examination of the practitioner who was personally a respondent to a non-party costs order, on the basis that he should not prejudice himself in relation to any future disciplinary investigation into the same conduct.  (Such an investigation might readily have been appreciated to have been on the cards, because his Honour was the person who initiated it by referring the practitioner to the Victorian Legal Services Commissioner.)

Continue reading “How to interview a witness who might be a defendant”

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Disciplinary prosecutions arising out of criminal convictions and civil findings against professionals

In disciplinary proceedings, prosecutors often wrongly assume that findings in prior decisions (usually criminal convictions) are both admissible and un-challengeable by the respondent.  Neither is true, however, at least where what is relied on by the prosecutor in the disciplinary case is something more than the fact of the conviction (e.g. the fact of the conduct which gave rise to it). Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 is much-cited, but has flown under the radar in Victoria and I must confess that I was ignorant of it until recently. It says as a matter of ratio decidendi that a professional in a disciplinary case is entitled to call evidence to contradict findings made in a previous criminal prosecution, and to do so is not of itself an abuse of process.  The same must be true, a fortiori, I would suggest, in relation to findings in a civil case.

Section 91 of the Evidence Act 2008 is often forgotten, too.  It says that evidence of a Court’s or tribunal’s decision or a finding of fact is not admissible to prove the existence of a fact that was in issue in that proceeding. Not only are reasons usually hearsay and opinion evidence, but the tender of reasons to prove the truth of what they record is specifically prohibited, except to the extent necessary to establish a res judicata or issue estoppel.  Where the common law applies, an even stricter result obtains by virtue of the rule in Hollington v F Hawthorn & Co Ltd [1943] KB 587.

I’m interested to know of how other jurisdictions deal with these questions, which also crop up in personal costs order cases, also discussed below.

Continue reading “Disciplinary prosecutions arising out of criminal convictions and civil findings against professionals”

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The ‘suck my dick’ case

Summary A drunken male barrister approached a seated female assistant clerk whom he did not know at a dinner at a barristers’ clerks conference, lightly pushed her head downwards towards the table and away from his person and said to her in her colleagues’ presence ‘suck my dick’, moments after greeting another barrister on the clerk’s floor, his friend, at the table by sticking his middle finger out, grabbing the other barrister’s head and pulling it to and from his crotch. Continue reading “The ‘suck my dick’ case”

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On the interpretation of ‘exceptional circumstances’ provisions re costs

Di Lorenzo v The Magistrates’ Court of Victoria [2021] VSC 475 was a case in which the Supreme Court spent 2 hearing days on a judicial review of a costs order worth $5,000.  One paragraph of it piqued my interest, about the interpretation of provisions which say there should be no order for costs of the proceeding, absent special or extraordinary circumstances.  Horrible members of that species of provisions are to be found inside s. 303 of the Legal Profession Uniform Law.

Continue reading “On the interpretation of ‘exceptional circumstances’ provisions re costs”

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Legal discipline and the model paedophile

If there were such a thing as a model paedophile, the respondent in Legal Services Commissioner v Ferguson [2021] QCAT 205, a gentleman in his early 60s, might be it.  He had psychiatric ill health and other life difficulties and turned to booze and porn, a small fraction of which was child pornography.  (No one suggested that his collection of presumably legal non-child porn was relevant in any way to his fitness to practice.) Continue reading “Legal discipline and the model paedophile”

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Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)

The legendary foundation author of Quick on Costs, Roger Quick, has asked me to put this old workmanlike paper on my blog so that he can cite it and link to it in the second edition of that monumental text which he is kindly working on for all our benefits.

What follows does not deal with any developments in the law since 2010, or indeed anything I have learnt since 2010, when I delivered the paper, and so it is out of date, but it might still be of use in some jurisdictions which have not adopted the Legal Profession Uniform Law or by analogy in some cases which are governed by that law.  Sorry about the formatting, which is the product of copying and pasting a Word document into WordPress.

1. Summary

This paper does not deal with contingent, or no-win no-fee retainers.  In relation to all other matters, the take-home points are these: Continue reading “Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)”

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What the Gobbo royal commission recommended about regulation of the legal profession

Here is Commissioner McMurdo’s Summary and Recommendations from the Final Report, published yesterday, of the Royal Commission into the Management of Police Informants.

Reproduced below is what it says about regulation of the legal profession.  There will be more complaints about barristers in the future.  Victorian barristers would be well advised to take out the top up insurance available to members of the Victorian Bar which includes a primary layer insurance against defence costs of disciplinary investigations including by the Victorian Legal Services Commissioner. Continue reading “What the Gobbo royal commission recommended about regulation of the legal profession”

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The tariff for rudeness: a reprimand

I had to review the penalties for rudeness by lawyers recently, and what I found is that the usual penalty is a reprimand, even for very rude recidivists.  That is not surprising, since a reprimand is a serious professional sanction, not to be equated with a slap over the wrist:  Peeke v Medical Board of Victoria [1994] VicSC 7 at p. 6 (Marks J); Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419 at [52] (a tribunal of three presided over by Deputy President Dwyer). This principle has been reiterated in A Practitioner v The Medical Board of Western Australia [2005] WASC 198 at [62], in LSC v Moore [2010] VCAT 742 at [44] (Member Butcher) and in LSC v Long [2011] VCAT 1164 at [24] (Deputy President Macnamara) and in LSC v Sapountzis [2010] VCAT 1124 (Member Butcher).  Most recently, see VLSC v VH at [27] et seq per Vice President Hampel [2018] VCAT 1498. Continue reading “The tariff for rudeness: a reprimand”

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Re-raising complaints-(not)

In Cahill v Victorian Legal Services Commissioner [2017] VSC 177 (Keogh J); [2017] VSCA 283 (Kyrou JA with whom the other Justices of Appeal agreed), the previous Victorian Legal Services Commissioner closed a disciplinary complaint against a solicitor once related proceedings were commenced. Despite then being functus officio, at the complainant’s request he ‘re-raised’ the complaint once the proceedings ended in what he regarded as inconclusive circumstances.  He prosecuted the practitioner, who successfully sought judicial review on the basis that the Commissioner was not entitled to have a second go at the investigation.  The Commissioner appealed unsuccessfully to the Court of Appeal.  Apparently, that was the end of it.

This case reaffirms the principle that statutory authorities cannot revisit their final decisions because they change their mind or come to appreciate that they are wrong: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 603; Semunigus v Minister for Immigration [2000] FCA 240; (2000) 96 FCR 533, 540 [55]; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 (20 December 2016) [48] (Nettle JA). Continue reading “Re-raising complaints-(not)”

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LPUL’s transitional provisions

Nothing is quite as un-fun as argument about transitional provisions, but it is often unavoidable, since disciplinary tribunals are usually creatures of statute, and if the new or the old statute is mistakenly invoked, the Tribunal may purport to exercise jurisdiction which it does not have, with the result that its orders will be nullities which may be disregarded even absent an appeal: The Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146 at [33].  I suspect the people who dream up these things would say that counsel have an obligation to assist Tribunals to avoid over-reaching.

This post principally considers Griffin v The Council of the Law Society of NSW [2016] NSWCA 364, a judgment of Sackville AJA with whom Ward and Gleeson JJA agreed, and Council of the NSW Bar Association v Nagle [2018] NSWCATOD 104, a decision of the Hon F Marks, Principal Member.

If you have been the subject of disciplinary orders since 1 July 2015, you might want to dust them off and check whether the correct Applicant sought them under the correct legislation.  If not, you might be entitled to disregard them, and require their removal from the disciplinary register.

To save you from having to puzzle over the detail of what follows, here is my summary, which assumes that you understand that Schedule 1 to the Legal Profession Uniform Law Application Act (Vic), which Schedule I refer to as ‘the LPUL’, stands as a law of NSW by virtue of the Legal Profession Uniform Law Application Act (NSW): Continue reading “LPUL’s transitional provisions”

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Suit for fees goes badly wrong but could have gone much worse

An ACT practitioner seems to me to have been skilfully represented, escaping with findings of unsatisfactory professional conduct, a reprimand and a fine.  The decision in Council of the Law Society of the ACT v LP [2017] ACAT 74  just shows how far cooperation and a persuasive articulation of remorse and insight can go.

The practitioner illegally sued his former client for fees in circumstances where he knew that the very person who had instructed him, a director of the client who had given a director’s guarantee and so was a third party payer, had sought taxation.  Generally speaking, solicitors cannot sue their clients for fees once the client has commenced taxation.

In support of applications for default judgment, and to wind up the corporate client, the practitioner represented to the court, including on oath, that there was no dispute about fees.  Given that the director, a builder, was the alter ego of his building company client, the proposition that the company did not dispute the fees attracted a charge of professional misconduct by swearing a false affidavit, a thoroughly serious allegation.  By a plea bargain, it was downgraded to a weird charge of unsatisfactory professional conduct (varied by me for readability):

The practitioner breached his general law ethical duty of professional conduct or the duty owed to the director of his former client pursuant to Rule 1.1 of the Legal Profession (Solicitors) Rules 2007 to continue to treat the former client fairly and in good faith, and not to treat it otherwise than in an honourable and reputable manner during the dispute over costs owed by the director or the former client.

Rule 1.1 was itself a weird old rule:

‘A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.’

Perhaps the horribleness of the original false affidavit charge’s drafting contributed to the prosecution’s willingness in the end to back away from it and retreat into the weirdness set out above.  The original charge (again, varied by me for readability) was: Continue reading “Suit for fees goes badly wrong but could have gone much worse”

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Is there an obligation to put in cross-examination that the witness is lying?

Professor Hampel has been telling me recently that the rule in the House of Lords’ judgment in Browne v Dunn (1893) 6 R 67 is much mis-understood by advocates and decision makers alike.  Another judge apparently gives a talk to the participants in the Victorian Bar’s readers course each intake emphasising the narrowness of the obligation.  Good advocates and judges, it appears, find unnecessary and inelegant recitations of strings of ‘I put it to yous’ as irritating as good advocates find irritating the suggestions from not so good decision makers that matters which were not required to be put to a witness must be put, or, after the event, ought to have been put.

The general tenor of these teachings is that there is an obligation to put matters to opposing witnesses less often than is sometimes assumed, or that a counsel of caution in putting things to witnesses to be on the safe side of the rule has its forensic downsides. As I understand it, the perception is that some counsel see the need to lay out their whole case to opposing witnesses to give them an opportunity to comment on it, regardless of whether the witness is already well appraised by witness statements or documents of the cross-examiner’s client’s case or whether the matters put in fact contradict or tell against any evidence of the witness.

Professor Hampel’s half-serious theory about the confusion flowing from the decision — that no one has ever read it — may be correct.  Someone else seems to have had the same concern, having set up a website devoted solely to putting the hitherto obscurely reported and difficult to find decision on the net.  (And, what do you know? The case is actually about relations between solicitors and clients which is principally about privilege and the liability of a solicitor to action for words spoken between solicitor and client.)

But there is one aspect of the rule which repeatedly attracts criticism when it is not complied with.  There is an obligation to squarely put to a witness in cross-examination allegations of dishonesty (or, to use a precise synonym, fraud). Lord Herschell said at 70-71: Continue reading “Is there an obligation to put in cross-examination that the witness is lying?”

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The ‘implied undertaking’ which is really a substantive legal obligation

Associate Justice Derham from time to time produces beautifully succinct and thorough summaries of the law, especially laws relating to procedure, in his careful judgments.  Busy practitioners are very grateful.  Here is his most recent such summary, from Fotopoulos v Commonwealth Bank of Australia [2017] VSC 61.  It is a helpful exposition of the substantive legal obligation which is sometimes referred to as an ‘implied undertaking’ or ‘the Harman principle’ after the House of Lords’ decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280. Continue reading “The ‘implied undertaking’ which is really a substantive legal obligation”

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Tribunals not bound by the laws of evidence

Update, 10 August 2017:  It once seemed to me having read Pizer’s Annotated VCAT Act (2015) at [8.60] that there was an argument to be made that the Evidence Act 2008 might have some operation to the extent that it is not over-ridden by s. 98 of the VCAT Act 1998, in that the Evidence Act 2008 empowers courts to do certain things which might not be described as part of the ‘rules of evidence’ referred to in s. 98. The Evidence Act 2008’s definition of ‘Victorian court’ (in whose proceedings the Act is said to apply) is inclusive of tribunals bound by the law of evidence, rather than excluding all tribunals which are not bound by the law of evidence, and VCAT has been regarded as a ‘court’ for various purposes. But the Court of Appeal has effectively decided (albeit without considering my thought) that the Evidence Act 2008 simply does not apply in VCAT: Karakatsanis v Racing Victoria Limited [2013] VSCA 305 at [32] – [34].

Update, 9 August 2017:  To gather the law together in one place:

(a) Pizer & Nekvapil, Pizer’s Annotated VCAT Act treats this question at [VCAT.98.160] citing Curcio v. Business Licensing Authority (2001) 18 VAR 155 at [26]; Pearce v. Button (1986) 8 FCR 408 at 422; Golem v TAC (2002) VAR 265 at [9(iv)]; Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 at [59]; and Medical Practitioners Board of Victoria v Saddik [2010] VCAT 366 at [44].

(b) A reader commended Justice Giles’s article ‘Dispensing with the Rules of Evidence’ at Vol 7 No 3 Australian Bar Review.

(c) Consider also Danne v The Coroner, [2012] VSC 454, noted here.

Original post: Here is a useful collection of interstate and federal law about what statutes are actually to be taken to mean when they say that a tribunal is not bound by the laws of evidence (like VCAT), from Justice Refshauge’s reasons in Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283: Continue reading “Tribunals not bound by the laws of evidence”

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Judges’ referrals to the ATO, police, Legal Services Commissioners

Often enough, judges refer the conduct of lawyers appearing before them (or disclosed by the case they are adjudicating) to the Legal Services Commissioner for investigation.  A recent example is Re Manlio (no 2) [2016] VSC 130.  Judges also refer the conduct of non-lawyer parties to investigative agencies, e.g. where a tax fraud is suggested by evidence in the case.

Generally, this is not done pursuant to any statutory directive or authority.  An exception is s. 202 of the Legal Profession Uniform Law which requires the Costs Court to refer a matter to the Legal Services Commissioner if it considers that the legal costs charged, or any other issue raised in the assessment, may amount to unsatisfactory professional conduct or professional misconduct.  (Compare s. 3.4.46 of the Legal Profession Act 2004 which authorised rather than required the Taxing Master to make a referral.)

I have never been particularly clear about the nature of such a referral, or as to the procedures which ought to be followed. Gibson DCJ set out the principles recently, at least as they apply in NSW, in Mohareb v Palmer (No. 4) [2017] NSWDC 127: Continue reading “Judges’ referrals to the ATO, police, Legal Services Commissioners”

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Disciplinary prosecution halted because Law Society’s reasons for deciding to prosecute were inadequate

Updates, 3 & 4 February 2019: The NSW Court of Appeal dismissed the Law Society’s appeal in Levitt: [2018] NSWCA 247; meanwhile a decision to like effect was made in AB v Law Society of NSW [2018] NSWSC 1975, the subject of this blog post.

Original post: The NSW Supreme Court has quashed decisions of the NSW Law Society to commence disciplinary proceedings against a Sydney solicitor following complaints that the solicitor advanced allegations of negligence in a costs assessment against two barristers without an adequate factual foundation: SAL v Council of the Law Society of NSW [2017] NSWSC 834, a decision of Wilson J. The Court restrained the Council from continuing the disciplinary prosecution which had been stayed pending the application for judicial review. The Council’s reasons were inadequate in not dealing with exculpatory material advanced by the practitioner during the investigation, and in not disclosing the Council’s path of reasoning in relation to why the conduct was professional misconduct rather than unsatisfactory professional conduct or why it was appropriate to prosecute rather than make an in-house determination such as a reprimand and a compensation order.

The implications of this decision are profound, for many a set of reasons at the conclusion of a disciplinary investigation are likely no better than those which were examined in this case, for the simple reason that no one has ever really sought to take the adequacy of these kinds of reasons to task.  First, those who are subject to current prosecutions might seek prohibition to stop them in their tracks: if you are involved in a disciplinary prosecution, careful study of this decision is advised. Secondly, with the rise in the quality of reasons at the conclusion of a disciplinary prosecution which one presumes the decision will generate, it may be hoped that better decisions about what to prosecute will be made.  Continue reading “Disciplinary prosecution halted because Law Society’s reasons for deciding to prosecute were inadequate”

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The Civil Procedure Act’s overarching obligation to keep costs proportionate

The Civil Procedure Act 2010 applies to proceedings in the Magistrates’ Court, County Court, and Supreme Court but not federal courts or VCAT. Its overarching purpose is to

‘facilitate the just, efficient, timely and costs effective resolution of the real issues in dispute’: s. 7. Continue reading “The Civil Procedure Act’s overarching obligation to keep costs proportionate”

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Appeals from VCAT on the basis of inadequate reasons

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:

‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]

That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which a disciplinary prosecutor carries the burden of proof as described in Briginshaw v Briginshaw. Continue reading “Appeals from VCAT on the basis of inadequate reasons”